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A man who claimed he was fired by IBM because of his membership in the U.S. Army Reserve will have his day in court, following a federal judge’s denial of IBM’s motion to dismiss. A “reasonable jury could surely find that [Michael] Warren’s status in the Reserve was a substantial or motivating factor in IBM’s decision to discharge him,” Southern District Judge Denny Chin wrote in Warren v. International Business Machines Corp., 03 Civ. 3340. “A reasonable jury could find that IBM’s stated reason for dismissing Warren was pretextual, and the record contains substantial evidence showing that IBM was unhappy with Warren’s repeated absences for Reserve duty and the possibility that he could be called for further service or even active duty on short notice,” the judge concluded. Warren joined the computer giant in 1994, while serving as a master sergeant in the Army Reserve. He transferred to the company’s global security group in 1999, where he remained until IBM dismissed him in September 2002. He had received favorable year-end reviews in each of the three years immediately prior to his release. Having joined the reserve in 1986, Warren spent approximately one weekend per month participating in drills. He also went on a two-to-three week training assignment annually. However, shortly after Sept. 11, 2001, Warren’s reserve responsibilities increased, as did his supervisors’ concern about missed time, according to Warren. In his deposition, he testified that one supervisor, Rob Jones, had discussed the military obligations with him approximately 15 to 20 times in 2001. “You’re killing me,” Warren quoted Jones as saying in one such conversation. “[W]e need to know what is happening, basically. What is up with the reserve.” In 2001, in addition to his usual weekend and annual training, Warren served an unplanned “pop-up” mission of approximately 21 days; in 2002, he had a 25-day pop-up assignment. Just prior to leaving for the 2002 assignment, Warren left a voicemail message for a co-worker, Liz Drummond, in London, in which he said, “Liz, this is Michael Warren. I’m gonna try you on your mobile. Pretty soon I’m gonna hunt you down and kill you. I’m gonna get on a plane … and I’m going to, um, errrrh, I’m going to track you down. I’ll talk to you in a minute. Bye bye.” Warren alleged that such jokes were typical among his team at IBM. “It’s almost like a ‘Sopranos’ episode,” he testified. Drummond herself had once joked, “You take out [your supervisor], I will take out [mine], we’ll run this business,” according to Warren. Shortly after Warren completed the 2002 assignment, Jones fired him for violating “business conduct guidelines” by making the supposedly threatening phone call. FEDERAL, STATE PROTECTIONS Warren filed an action soon thereafter, claiming IBM violated the federal Uniformed Services Employment and Reemployment Rights Act and the New York State Soldiers’ and Sailors’ Civil Relief Act. The federal act prohibits employers from discriminating against individuals who serve in the uniformed services on the basis of their membership or because of service obligations. The state act provides that anyone whose absence is necessitated by military service is entitled to reemployment rights. It also holds that a person reemployed under the law shall not be discharged within one year of returning without cause. The issues before the court, according to Judge Chin, were whether sufficient evidence existed for a reasonable jury to find that Warren’s status as a reservist was a “substantial or motivating factor” in his firing and, if so, whether IBM demonstrated that it would have released Warren even if he had not been a member of the reserve. Chin found in favor of Warren on both issues. Warren’s significant number of absences, as well as his supervisors’ unhappiness about the absences, comprised a prima facie case of discrimination, the judge ruled. A jury could also find IBM’s articulated basis for firing Warren to be pretextual. “A reasonable jury could find that Warren was joking when he left the voicemail … and that discharging an employee with an excellent eight-year employment record was exceedingly, and irrationally, harsh,” Chin wrote. IBM’s “shifting” explanations and the timing of the discharge supported the claim as well, according to the judge. “Under these circumstances, a reasonable jury could surely find that the most likely explanation — indeed, the only logical explanation — is that IBM discharged Warren because of the continued absences caused by his membership in the Reserve and the possibility that he would be summoned to additional and possibly extended service,” Chin held. The court also discounted IBM’s explanation for dismissing Warren. If the threatening voicemail “message is contemplated in a broader context — the tone of Warren’s voice, the words he used, his history with IBM, and the physical distance between Warren and Drummond — a reasonable jury could find that it was not a real physical threat,” Chin wrote. “A rational fact-finder could certainly find that Warren was joking.” Brendan Chao and Christopher P. Edelson of Chao & Edelson represented Warren. Kevin G. Lauri of Jackson Lewis represented IBM.

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